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In Wisconsin Western District Federal court today, Judge William M. Conley (UW Law School Graduate, Former Foley and Lardner Attorney) overturned two key portions of Act 10 as unconstitutional.

In his 39 page opinion dated March 30, Conley concludes that “the State’s interest in avoiding the reality or appearance of favoritism or entanglement with partisan politics — is the very reason this court cannot uphold the State of Wisconsin’s apparent, if not actual, favoritism and entanglement in partisan politics by discriminating in favor of fundraising efforts on behalf of public safety unions over general employee unions.”

The court has given the State until May 31 to reinstate automatic payroll deductions for state employee union members. Conley’s decision also found the annual re-certification by an absolute majority unconstitutional, and cited the US Supreme Court:

“The Supreme Court has indicated that “[t]he absence of precedent for [an act] is itself instructive; ‘[d]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.’” Romer, 517 U.S. at 633 (quoting Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37-38 (1928)).”

The court recognized the First Amendment burden of annual re-certification, stating “…the court would be remiss not to at least note the likely burden the annual recertification process imposes on members’ speech and association rights. Indeed, as it works a direct burden on general employee unions, its discriminatory application appears indefensible to a First Amendment challenge. See discussion infra Parts II.A, II.B. Even if not itself a direct violation of plaintiffs’ First Amendment rights, the appearance of a partisan division of the two classes of unions is troubling. Id. Case: 3:11-cv-00428-wmc Document #: 107 Filed: 03/30/12 Page 23 of 39”

The court immediately enjoined the annual re-certification by an absolutemajority.